State Consumer Disputes Redressal Commission
Paradise Heights Chs Ltd vs M/S Abee Associates on 27 August, 2019
CC/11/283
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/11/283
Paradise Heights CHS Ltd.
Millat Nagar, Lokhandwala Complex,
Andheri (W), Mumbai.
(Thru Hon. Secretary Mrs.Rashida H. Bondre) ...........Complainant(s)
Versus
1. M/s.Abee Associates
Shop No.9, Plot No.H 43
Park Paradise, Oshiwara,
Andheri (W), Mumbai-400 053.
2. M/s.Oshiwara Land Development Co. Pvt. Ltd.
71/73, Botawala Bldg.,
Appollo Bunder, Mumbai-400 001. ............Opponent (s)
BEFORE:
D.R. Shirasao PRESIDING JUDICIAL MEMBER
A. K. Zade MEMBER
For the Mr.H.V. Kumarswami, Advocate for
Complainant: complainant.
For the Ms.Supriya Patil, Advocate i/b.
Opponent: Mr.Uday B. Wavikar, Advocate for
opponent No.1.
ORDER
Per Shri D.R. Shirasao, Hon'ble Presiding Judicial Member Complainant-Society has filed this complaint for getting conveyance, occupation certificate and other statutory benefits from opponents along with monetary claim.
Brief facts of the case are as under :-
Opponent No.1 developed property bearing CTS No.1/206 (Pt) in Survey No.41 (Part) of Oshiwara Village, Andheri (West), Mumbai. Opponent No.1 has constructed a building on that land by name Page 1 of 14 CC/11/283 'M/s.Paradise Heights CHS Ltd.' consisting of 28 flats. Opponent No.1 has executed Sale Deed in favour of different flat purchasers and had sold those 28 flats to them. All the flat purchasers thereafter formed a Co-op. Housing Society by name "Paradise Heights CHS Ltd." Complainant is the same society who has filed this complaint.
At the time of executing Sale Deed in favour of different flat purchasers, opponent No.1 had agreed that they will form Co-op. Housing Society of the flat purchasers. Opponent No.1 also agreed to transfer the entire property in favour of the Society after formation of Society. Opponent No.1 had also agreed that before executing conveyance in favour Society they will complete the construction of the building in all respects and will provide all the amenities and basic infrastructure to the flat purchasers.
It is the contention of complainant that however, opponent No.1 failed to complete process of formation of registered society of the flat purchasers. Hence, all the flat purchasers on their own accord formed the society. Complainant is the same society. All flat purchasers have made expenditure of Rs.3,26,000/- for the same. It is the contention of complainant that opponent No.1 has not completed the construction of building in every respect and has not obtained Occupation Certificate in respect of building from the BMC. Hence, opponent No.1 also could not convey the property in favour of complainant-society. They further submitted that opponent No.1 failed to install second lift in the building. It is the contention of complainant that for installation of that second lift they will have to make expenditure of Rs.20 Lakhs. They have also give list of work in their complaint which opponent No.1 had not completed. It is the contention of complainant that they will have to make expenditure for the same if it is not completed by opponent No.1. It is also the contention of Page 2 of 14 CC/11/283 complainant that as opponent No.1 has not obtained Occupation Certificate in respect of building all the flat purchasers are required to pay water charges and property taxes as per commercial rate. They have made expenditure of Rs.2,90,000/- towards excess of water charges and amount of Rs.35,27,000/- towards excess of property taxes. Complainant has given list of as many as nineteen documents which opponent No.1 is required to give to complainant. Complainant has claimed all these documents from opponent No.1. Complainant by issuing notice to opponents on 20/09/2010 called upon to fulfil their obligations. Opponent No.1 replied notice on 29/09/2010. However, they denied their liability in that respect. Hence, complainant has filed this complaint against opponents.
Opponent No.2 is the owner of the property. Complainant has claimed conveyance of property from both opponents. They have claimed direction against opponent No.1 in respect of installation of second lift, obtaining Occupation Certificate from the BMC and to provide all the necessary documents to the Society including handing over possession of refuge area. Along with these statutory reliefs complainant has also claiming amount of Rs.3,26,000/- from opponent No.1 which they had collected from the flat purchasers for formation of society. Complainant has also claimed amount of Rs.4 Lakhs for completing unfinished construction work and amount of Rs.33 Lakhs for obligations of opponent No.1 remained to be completed. Complainant has also claimed amount of Rs.2,90,000/- from opponent No.1 which flat purchasers are required to pay in excess of water charges and amount of Rs.35,27,000/- for excess of property taxes. Complainant has also claimed compensation of Rs.75,000/- per flat purchaser, total amounting to Rs.21 Lakhs for mental pain and agony.Page 3 of 14
CC/11/283 Opponent No.1 has contested the complaint by filing written version on record. They submitted that they have already completed construction work of the building and handed over possession of flats to all the 28 flat purchasers in the year 2005-2006. In respect of construction of building and providing amenities there is no complaint from any of the flat purchasers to them. They further submitted that opponent No.1 was always ready to form Society of flat purchasers. However, they were not ready to co-operate opponent No.1 in respect of formation of Society. As per clause No.5 of the agreement of Sale in such situation opponent No.1 had agreed to form a 'Corporate Body'. Accordingly opponent No.1 had taken steps and formed a 'Company' on 13/07/2009 and got it registered. They had requested all the flat purchasers to accept the Share Certificate of the Company. However, they had not shown their willingness to accept the Share Certificate of the Company. On the contrary, all the flat purchasers formed their own Society and got it registered. Complainant is the same Society. However, same was formed on 23/12/2009. In respect of formation of Society, the order passed by the Deputy Registrar of Co- operative Societies was challenged by opponent by filing Writ Petition No.346/2010 before the Hon'ble Bombay High Court. However, as per order passed by the Hon'ble Bombay High Court, the flat purchasers had given liberty to form their own Society. Opponent No.1 further submitted that at the time of giving possession of flats to the flat purchasers, it was agreed that since taking possession of flats, they will be liable to pay the water charges and property taxes in respect of their flats. All the flat purchasers had agreed for the same. Opponent No.1 further submitted that after completion of the entire construction work of the building, they have already applied for getting Completion Certificate and Occupation Certificate from the B.M.C. At that time, opponent No.1 had also informed the BMC that all the conditions of IOD are complied by them. It Page 4 of 14 CC/11/283 is the contention of opponent No.1 that however, after verification, the Corporation informed them that although all other work is completed, the work of installation of second lift is pending. Hence, opponent No.1 had given order in that respect to Excel Lifts for installing second lift in the building. However, members of the Society were not co-operating with the workers of Excel Lifts for installation of second lift. Hence, they could not install second lift in the building. Hence, it is the contention of opponent No.1 that second lift could not be installed only because of objection taken by the flat purchasers. As second lift is not installed, the BMC had not issued building Completion Certificate and Occupation Certificate in respect of that building. Hence, opponent No.1 could not execute conveyance of the property in favour of complainant-Society. Hence, it is the contention of opponent No.1 that only because of non- cooperation of flat purchasers; opponent No.1 could not fulfil their statutory obligations in favour of complainant. Hence, for that purpose opponent No.1 should not be held responsible. Hence, they submitted that they have not given any deficiency in service to the complainant or to the flat purchasers or members of the Society. In respect of monetary claim they submitted that opponent No.1 has already made expenditure for formation of Company. Hence, complainant is not entitled to get back the amount which was collected for formation of Society by opponent No.1 from the flat purchasers. They further submitted that as flat purchasers are residing in the flats since 2005-2006 they are required to pay water charges and property taxes for the flats. Opponent No.1 further submitted that as except installation of second lift they have already completed all the construction work of the building. Hence, they are not required to pay any amount for the same. The work of installation of second lift could not be completed only because of non-cooperation of flat purchasers. Hence, they submitted that they are not liable to pay any amount for all these Page 5 of 14 CC/11/283 purposes to complainant. Hence, they submitted that complaint be dismissed.
Opponent No.2 contested the complaint by filing their written version on record. They submitted that except getting conveyance complainant has not made any allegations against opponent No.2. In respect of construction of the building and whatever work remained to be done in the building, the dispute is in between complainant and opponent No.1. Opponent No.2 has no concern with the same and for that purpose opponent No.2 cannot be held responsible. They further submitted that in respect of giving conveyance of the property they have already given consent to opponent No.1. Hence, in respect of execution of conveyance of property there is no liability on them. They further submitted that there is no agreement in between flat purchasers and opponent No.2 of any kind. Hence, opponent No.2 is not responsible for all the deficiencies which complainant has claimed against opponents. Hence, they submitted that complaint filed against opponent No.2 be dismissed.
Considering the facts and circumstances of the case, following points arise for our determination and we record our findings thereon for the reasons as given below :-
Sr.No. Points Finding
1. Whether complainant is consumer of Yes
opponents?
2. Whether opponents have given Yes
deficiency in service to complainant?
Whether complainant is entitled to get
3. Yes, as per final
statutory reliefs and monetary reliefs as
order.
claimed from opponents?
4. Complaint is partly
What order?
allowed.
REASONS :-
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CC/11/283
As to Point No.1 :- In this case, it is admitted fact that property bearing CTS No.1/206 (Pt) in Survey No.41 (Part) of Oshiwara Village, Andheri (West), Mumbai was owned by opponent No.2. Opponent No.1 has developed this land and constructed a building on this land by name "Paradise Heights" consisting of 28 flats. Opponent No.1 had sold all the 28 flats to different flat purchasers by executing individual agreement with them. They had also given possession of flats to all the flat purchasers in the year 2005-2006. All the flat purchasers formed a Society.
Complainant is the same Society. It is the contention of complainant that opponent No.1 has failed to obtain building Completion Certificate and Occupation Certificate in respect building from the BMC and failed to convey the property in favour of complainant-Society. Hence, for getting these statutory reliefs from opponents, complainant-Society has filed this complaint against them. Along with these statutory reliefs, complainant has also claimed monetary reliefs against opponent No.1. In view of the same, as complainant-Society is formed by all the flat purchasers, the complainant-Society has become consumer of both opponents, who are responsible for giving conveyance of property in favour of the Society along with other benefits. Hence, we answer Point No.1 in affirmative.
As to Point Nos.2&3 :- In this case, it is admitted fact that opponents have not conveyed the property in favour of the Society. In this respect it is particular to note that opponents could not execute conveyance of the property in favour of the complainant-Society as they could not obtain building Completion Certificate and Occupation Certificate in respect of building from the BMC. In this respect it is the contention of complainant that much of the work of construction is remained to be completed by opponent No.1. Moreover, opponent No.1 has not installed second lift in the building. Hence, all the conditions of IOD are not Page 7 of 14 CC/11/283 completed by opponent No.1 and hence, building Completion Certificate and Occupation Certificate is not issued by the Corporation in respect of the building.
In this respect opponent No.1 has filed documents on record. Opponent No.1 has produced correspondence made by them with the Corporation in respect of getting building Completion Certificate and Occupation Certificate. On perusal of the same it appears that at the time of giving IOD by the Corporation to opponent No.1 certain conditions were imposed on opponent No.1 and opponent No.1 had to complete the same. It is the contention of opponent No.1 that they had already complied rest of the work and the work of installation of second lift only remained to be completed. However, it appears that it is the contention of opponent No.1 that they could not install the same because of objection taken by the flat purchasers. Hence, it is the contention of opponent No.1 that for non-installation of second lift, opponent No.1 is not responsible. However, contention of opponent No.1 in this respect cannot be accepted. From the correspondence filed on record it appears that the work of installation of second lift was not completed by the opponent No.1 till filing of this complaint. However, after filing of this complaint in the year 2011 they wanted to install second lift in the building. However, as matter is pending in the Court, members of the Society had taken objection for the same and had directed opponent No.1 to take permission in that respect from this Commission. However, opponent No.1 has not taken any steps for getting permission in that respect from this Commission. Hence, the work of installation of second lift is still pending in this building. Hence, we are of the opinion that the complainant-Society is entitled to get direction in that respect against opponent No.1. It is the contention of opponent No.1 that they had completed rest of the work. Then, in that Page 8 of 14 CC/11/283 event opponent No.1 after installation of second lift in the building should obtain building Completion Certificate and Occupation Certificate from the Corporation and thereafter, opponents will be in a position to execute conveyance of the property in favour of the complainant-Society.
Complainant-Society along with getting of statutory reliefs have also made monetary claims against opponent No.1. It is the contention of complainant that opponent No.1 has collected amount for formation of Society from all the flat purchasers. However, all the flat purchasers formed the Society on their own by making their own expenditure. Hence, all the flat purchasers are entitled to get the amount collected from them for formation of Society from opponent No.1. As against this it is the contention of opponent No.1 that they had already formed Company, Corporate Body on 13/07/2009. However, flat purchasers had not become ready to become member of said Company and they on their own accord formed their Society. It appears that the order passed by the Deputy Registrar allowing the flat purchasers to form their Society was challenged by opponent No.1 by filing Writ Petition bearing No.346/2010 before the Hon'ble Bombay High Court. The same was disposed of by the Hon'ble Bombay High Court by passing order on 15/01/2010. While deciding the said Writ Petition, the Hon'ble Bombay High Court considered that opponent No.1 cannot compel the flat purchasers to join the Corporate Body formed by opponent No.1. The flat purchasers are at liberty to form the Society on their own accord. Hence, the Hon'ble Bombay High Court confirmed the order passed by the Deputy Registrar in respect of formation of complainant-Society by the flat purchasers. Hence, it has become clear that the formation of Corporate Body by opponent No.1 was of no use and opponent No.1 was required to form the Society of the flat purchasers as per their own desire and choice. However, opponent No.1 failed to form Page 9 of 14 CC/11/283 the Society of the flat purchasers. Hence, opponent No.1 is not entitled to retain the amount which they collected from all the flat purchasers towards formation of Society and opponent No.1 has to return back the same to the Society. Complainant has claimed amount of Rs.3,26,000/- in that respect from opponents. However, there is no evidence on record to show that how much amount opponent No.1 has collected from each of the flat purchasers for formation of Society. However, we are of the opinion that whatever amount opponent No.1 has collected from the flat purchasers towards formation of Society, opponent No.1 is required to repay the same to the complainant-Society.
In this case, it is the contention of complainant that as Occupation Certificate is not obtained by opponent No.1 from the Corporation; all flat purchasers are required to pay water charges and property taxes as per commercial rate. Hence, complainant has claimed excess amount of water charges and property taxes from opponent No.1. They have claimed amount of Rs.2,90,000/- for excess water charges and amount of Rs.35,27,000/- in respect of excess property taxes from opponent No.1. As against this it is the contention of opponent No.1 that all the flat purchasers have already taken possession of flats in the year 2005-2006. At the time of giving possession of flats to them they agreed to pay water charges, electricity charges and property taxes of the flat. Hence, they are required to pay the same and opponent No.1 is not liable to pay the excess amount of water charges and property taxes to complainant. In this respect opponent No.1 has produced copy of letter on record by which they have given provisional possession of flat to the flat purchasers. On perusal of this letter it appears that at the time of taking possession of flat from opponent No.1 flat purchasers agreed to pay water charges, electricity charges and all other charges in respect of their respective flat. However, Page 10 of 14 CC/11/283 it is particular to note that as opponent No.1 has not obtained building Completion Certificate and Occupation Certificate in respect of building from the BMC, flat purchasers are required to pay water charges and property taxes of the flat at commercial rate. It is the duty of opponent No.1 to obtain Occupation Certificate and building Completion Certificate from the BMC. If opponent No.1 had obtained these two certificates from the BMC then flat purchasers would not have required to pay water charges and property taxes to the BMC at commercial rate. Hence, we are of the opinion that the complainant-Society is entitled to get the amount which flat purchasers have paid in excess in respect of water charges and property taxes. Complainant-Society has claimed Rs.2,90,000/- for water charges and Rs.35,27,000/- in respect of property taxes. In that respect they have filed bills of water charges and property taxes on record. However, there is no evidence on record that the excess amount paid by all the flat purchasers towards water charges was of Rs.2,90,000/- and Rs.35,27,000/- in respect of property taxes. Hence, we are of the opinion that opponent No.1 can be directed to pay whatever amount all the flat purchasers had paid towards excess of water charges and property taxes till Occupation Certificate is obtained by opponent No.1.
In respect of unfinished work, complainant has claimed Rs.4 Lakhs and amount of Rs.33 Lakhs from opponent No.1 on the ground that if it is not completed by opponent No.1, the Society will have to complete the same. However, we are of the opinion that for obtaining Occupation Certificate from the BMC opponent No.1 will have to complete the construction of the building as per approved plan and also will have to obtain building Completion Certificate from BMC, then and then only opponent No.1 will be in a position to obtain Occupation Certificate from the BMC. In view of the same in respect of unfinished work the Page 11 of 14 CC/11/283 responsibility is of opponent No.1. Unless opponent No.1 will complete the same, they will not be in a position to obtain Occupation Certificate and Building Completion Certificate from the BMC and further they will not be in a position to execute conveyance of the property in favour of the complainant-Society. Hence, we are of the opinion that the responsibility of these works should be saddled on opponent No.1 without giving any monetary claim in that respect to the complainant.
Complainant has further claimed amount of Rs.75,000/- per member from opponent No.1 total amounting to Rs.21 Lakhs. In this case, it is admitted fact that opponent No.1 has given possession of flats to the flat purchasers in the year 2005-2006 and since then they are residing in the flats and enjoying the property. However, until they get Occupation Certificate it cannot be considered that possession taken by them is legal and complete. Since 2005-2006 flat purchasers are in possession of their respective flats without Occupation Certificate till filing of complaint and till today also. In view of the same, we are of the opinion that all the flat purchasers are entitled to get compensation for mental pain and harassment. However, amount of Rs.75,000/- claimed per member is very excessive. Since, after formation of Society, Society has taken care of all the flat purchasers and the Society was formed on 23/12/2009. The Society cannot claim any amount for mental pain and agony. However, we are of the opinion that for the inconvenience caused to the Society and their members, lumpsum compensation of Rs.10 Lakhs can be given from opponent No.1. Looking to these facts of the case, it has become clear that by not obtaining Occupation Certificate, Building Completion Certificate and by not providing material documents to Society, opponent No.1 has given deficiency in service to complainant. Moreover, by not executing conveyance of the property in favour of the Society both opponents have Page 12 of 14 CC/11/283 given deficiency in service to complainant. Hence, we are of the opinion that the complainant-Society is entitled to get the statutory reliefs from opponents along with some of the monetary claims as mentioned above from opponent No.1. Hence, we answer Point Nos.2&3 accordingly and proceed to pass the following order :-
-: ORDER :-
1. Consumer complaint is hereby partly allowed with costs quantified at Rs.25,000/- (Rupees Twenty-Five Thousand only) payable to the complainant-Society by opponent No.1.
2. Opponent No.1 is hereby directed to complete the entire unfinished work including work of installation of second lift as per approved plan and obtain Building Completion Certificate and Occupation Certificate from the BMC within a period of three months from the date of passing of this order. If opponent No.1 failed to obtain Building Completion Certificate and Occupation Certificate from the BMC within stipulated period, then opponent No.1 will have to pay penalty of Rs.10,000/- (Rupees Ten Thousand only) per month to the complainant-Society from the date of passing of this order till obtaining Building Completion Certificate and Occupation Certificate from the BMC.
3. Opponents are directed to execute conveyance of the property in favour of complainant-Society within a period of three months after getting Building Completion Certificate and Occupation Certificate from the BMC.
4. Opponent No.1 is further directed to return amount which they had collected from all the flat purchasers in respect of formation of Society to complainant-Society.
5. Opponent No.1 is further directed to return the amount which all the Page 13 of 14 CC/11/283 flat purchasers have paid in excess in respect of water charges and property taxes for want of Occupation Certificate to complainant- Society.
6. Opponent No.1 is further directed to pay lumpsum compensation of Rs.10,00,000/- (Rupees Ten Lakhs only) to complainant-Society for inconvenience caused to the Society and their members.
7. Opponent No.1 is directed to pay all these monetary claims to complainant-Society within a period of two months from the date of passing of this order, otherwise opponent No.1 will have to pay interest on these amounts @ 9% p.a. from the date of passing of this order till realisation of amount by the complainant-Society.
8. Opponent No.1 is further directed to give all the necessary documents which are mentioned by the complainant in their complaint in Para 9 from Sr. Nos. (i) to (xix) at the time of execution of conveyance in favour of the complainant-Society.
9. Complainant-Society is hereby directed to co-operate opponent No.1 in respect of completing unfinished work including installation of second lift and getting execution of conveyance from the opponents.
10. Copies of the order be furnished to the parties.
Pronounced Dated 27th August 2019.
[ D.R. Shirasao ] PRESIDING JUDICIAL MEMBER [ A. K. Zade ] MEMBER dd.
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